I thought it might be interesting tonight to take a look at the electoral fates of two Congressional leaders most closely tied to proposals for legislation to whitewash President Bush's warrantless NSA surveillance program, Sen. Mike DeWine and Rep. Heather Wilson.

DeWine proposed the worst of the wave of surveillance bills initially put forward in March--including a provision that would punish whistleblowers with 15 year prison terms and million dollar fines.

Currently ranked 99th among U.S. Senators in approval rating, he was substantially behind Sherrod Brown in the polls, and (unlike many Republican candidates in recent days) seemed to be falling backwards as election day approached.

Clearly he's gotten tarred with scandals associated with other members of his party--both locally (with the Republican state government in disarray after a rare-coin investment scheme swallowed almost $40 million in public funds, and Governor Bob Taft dipping to an approval rating of 6.5%) and nationally (with the Abramoff scandal threatening to send Ohio Rep. Robert Ney to jail). But it might have been harder for the voters to separate DeWine from his party when he spent so much time during 2006 proposing legislation to cover up his President's unlawful program of surveillance. (It's pretty ironic, given that he had been attacked from the right during the primaries for being too moderate.)

The NSA chickens may also have come home to roost for Heather Wilson, locked in a tight race with Patricia Madrid in New Mexico's First Congressional District, a military- and defense-laden district but one that is also a third Latino. Madrid took her first leads in the polls in mid-October.

Wilson was responsible for pushing forward the one surveillance bill that managed to pass a house before Congress recessed for the elections, the Electronic Surveillance Modernization Act. This bill might have surpassed DeWine's effort and taken the title of Worst Surveillance Bill of 2006 (although, in DeWine's defense, Wilson had more time to work on hers). Wilson's bill would have allowed unlimited surveillance (without any court oversight) for 90 days after a terrorist attack--or for 90 days after the president informs Congressional leaders and the intelligence committees that there is "an imminent threat of attack" in his judgment. Luckily the differences between Wilson's bill and the Senate proposals were so great that the bill had no chance of becoming law, given the short amount of time remaining before the recess, and the Senate's pressing need to gut the 800-year-old writ of Habeas Corpus.

Wilson had withstood strong electoral challenges in the past. But, like DeWine, Wilson got in trouble this time around because she had difficulty separating herself from President Bush, and much of the damage seems self-inflicted (as this bit from the Post relates):

One of the toughest questions for Wilson this campaign has been whether she thinks Bush is a good president. The normally poised and prepared Wilson sidestepped the question at a recent debate, but she was pressed three more times at a news conference the next day.
"I think my job is to stand up for the people of New Mexico, and history will be the judge of the president and of me," she finally answered.

History may be arriving tonight for Wilson. To the extent that voters felt that all the surveillance measures put forward in a rush during the past few months had the primary aim of covering up the President's illegal conduct, her proposal might well have reinforced the impression that she lacked independence from the President.

Even if both incumbents are swept out of office, there may be some surprises on the surveillance legislation front during the lame-duck session of this Congress. Section 10 of Wilson's Electronic Surveillance Modernization Act would have immunized any telecommunications company that participated in the NSA program for anything they did to aid and abet the President's illegal NSA spying program since 9/11. Essentially, her bill would have killed off all the current class-action lawsuits seeking damages against AT&T, Verizon, and the other companies that allowed the NSA access to their customers' communications and turned over calling records as well.

It appears that the telecom companies are pushing to have such immunity provisions passed during the lame duck session following the election. Such a proviso, inserted into some other larger bill unrelated to surveillance, could easily be slipped through with far less controversy than bills (like DeWine's or Wilson's) that purported to change the entire post-Watergate legal structure designed to control abuses of warrantless wiretapping. But I'll post more on this later in the week.

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